July 10, 2003

Dear Chief Justice Veasey and Justices Holland, Berger, Steele and Jacobs:

On July 3, 2003, House Bill No. 287, entitled “An Act to Amend Title 11 of the Delaware Code Relating to the Classification of Offenses, Sentences” was presented to me pursuant to Article III of the Delaware Constitution. I enclose a copy of the legislation. This Bill would amend Delaware’s capital punishment law, specifically 11 Del. C. § 4209, concerning the procedures pursuant to which a Court may sentence a defendant to death over the contrary vote of a jury. Section 4 of the Bill states that, if enacted, it “shall apply to all defendants tried re-tried, sentenced or re-sentenced after its effective date.” House Bill No. 287 contains no clause declaring that its provisions are severable in the event that any provision of the Bill shall be determined invalid. The Synopsis to the Bill indicates that it is intended to have application to a matter that is presently before your Honors on appeal from the Delaware Superior Court. The Synopsis also refers to a case decision of the United States Supreme Court that is asserted to validate House Bill No. 287’s approach to capital sentencing.

Under Article III of the Delaware Constitution, if I do not act with respect to House Bill No. 287 on or before July 15, 2003, it shall become law without my signature.

On July 9, 2003, I received correspondence from Chief Justice Veasey directed to Steven P. Wood, State Prosecutor, concerning the process pursuant to which the Bill was considered in the General Assembly. Although the Chief Justice’s correspondence does not analyze the merits of House Bill No. 287, it does mention “potentially problematic legal issues” raised by the Bill’s passage. I believe it is in the best interests of both the Courts and the General Assembly that the constitutionality of this Bill be promptly and authoritatively addressed, so that the State (including its jurors, prosecutors and judicial officers) can avoid the very substantial cost of re-trying and re-litigating costly death penalty matters in the event that some portion of this measure is later determined to be invalid. Therefore, in accordance with the provisions of Section 141 of Title 10, Delaware Code, and Section 2102 of Title 29, Delaware Code, I respectfully request an opinion of the Justices concerning whether the provisions of House Bill No. 287 are valid under the Constitution of the United States and the Constitution of the State of Delaware, either generally, or specifically as applied “to all defendants tried, re-tried, sentenced or re-sentenced after its effective date.”

Thank you for your prompt attention to this matter.

Very truly yours,

Ruth Ann Minner

Governor

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